Comedy and Terror in Guantanamo BayBy Michael P. Richter Published on: 10 October, 2014
My mission was clear: go to the US Naval Station at Guantanamo Bay, Cuba on behalf of the New York City Bar Association, and observe and report on the pre-trial proceedings against Abd al Rahim Hussayn Muhammad al Nashiri, the alleged mastermind behind the attack on the USS Cole.1 Before I left for Cuba, I carefully studied al Nashiri’s background and the charges against him. As a former intelligence officer with the Defense Intelligence Agency and the Office of the Director of National Intelligence, and now an attorney in private practice, I hoped to firmly comprehend this unique case.
It was October 12, 2000. The USS Cole (DDG-67), an Arleigh Burke-class Aegis-equipped guided missile destroyer, was moored in the Gulf of Aden in Yemen. A small civilian boat came along the port side as the Cole refueled. The occupants smiled and waved to the sailors onboard. At 11:18 a.m. local time, this small boat, laden with explosives, detonated, ripping a gaping thirty to forty foot hole in the warship at the waterline. Seventeen sailors were killed and thirty-nine were wounded.
Nearly two years later al Nashiri allegedly launched his next attack, this time on the French supertanker Limburg. The modus operandi was nearly identical – a dinghy packed with explosives came along the starboard side and detonated. One crew member was killed, twelve were injured, and approximately 90,000 barrels of oil spilled into the Gulf of Aden. But al Nashiri did not perfect this tactic on his first try. About one year before the attack on the Cole, al Nashiri purportedly sent a suicide boat to destroy the USS The Sullivans (DDG-68), but overloaded with explosives, it foundered before it could reach its target. With the help of other terrorists, a front-end loader, a crane and flatbed truck, al Nashiri recovered the attack boat and its explosives.
Al Nashiri’s naval-attacks led some of his followers to anoint him the “Commander of the Sea,” however he has reportedly facilitated land-based terrorist attacks as well. On August 7, 1998, simultaneous truck bombs detonated at the US embassies in Nairobi and Dar es Salaam, killing 224 people, including twelve Americans. Nearly 5,000 people were wounded. The confessed mastermind, Mohamed Rashed Daoud al Owhali, who is currently serving a life sentence at the federal supermax prison in Florence, Colorado, implicated al Nashiri to spare himself the death penalty. According to al Owhali, al Nashiri helped him obtain a Yemeni passport to travel to Nairobi five days before the bombing.
Al Nashiri is in his late forties, a Saudi national, and charged with the most heinous crimes that our laws allow: treachery, perfidy, murder and attempted murder, terrorism, conspiracy, intentionally causing serious bodily injury, attacking civilians, attacking civilian objects, and hijacking. In Yemem, al Nashiri has already been tried in absentia, convicted and sentenced to death. When he was arrested in October 2002 in the United Arab Emirates he was holding several forged passports from different countries with various identities.
But al Nashiri says he didn’t do it and claims that his relationships with Usama bin Laden and other terrorists were completely innocent and coincidental – he had no idea what they were doing. He admits that Usama bin Laden gave him money from time to time, but that was because they were friends: “I took about five or ten thousand dollars from Usama,” he told the US military tribunal in 2007.
Another time Usama gave him “[m]aybe half a million dollars.” Whenever he went to Afghanistan he would “just stop by and visit [Usama] . . . [a]nd if I needed money I would just ask him and he would give money to me.”
Likewise, it was a pure coincidence that al Nashiri gave explosives to the suicide bombers that attacked the Cole: “Maybe three or four boxes, fifty kilograms. . . In Yemen they use that to dig wells . . . [s]o buying explosives is a common thing.”
Another random event – he gave the suicide bombers the attack boat. He also instructed an associate to videotape the explosives-laden craft as it approached and detonated next to the Cole, but he did that for a friend “so it could be used for tourism and things like that.” Sometimes al Nashiri slipped from his story. In response to a question from the tribunal in 2007 he said that “I talk[ed] [with] Usama bin Laden about using that ship or that boat to hit an American ship.” Whoops. The members of the military panel tasked with determining whether al Nashiri should be deemed an enemy combatant were dumbfounded by this string of coincidences: “How do you explain how you have so many relationships with business associates in Yemen, Dubai, and Saudi Arabia, who have been involved in some form of terrorism?” Al Nashiri responded that “It’s a common thing. We are young men. I travel a lot. Pakistan, Saudi Arabia, Chechnya. I used to go to the battle fields [a]nd witness how the fights were taking place[,] [a]nd I met so many people[,] [a]nd many incidents were related to those people. But that doesn’t mean that I was involved in them.” In fact, according to al Nashiri’s narrative, he has nothing against anyone: “I’m not the enemy of anybody,” he told the tribunal. “Even you, the Americans, I don’t consider you as my enemy. You are people like other people.”
From 1992-1993 he fought in Tajikistan and trained at an Al Qaeda facility in Khwost, Afghanistan. He met Usama bin Laden in 1994 and participated in the first Chechen war. Three years later al Nashiri returned to Afghanistan to fight some more. Eventually, he rose up the chain of command, reporting directly to bin Laden and was later given authority for all Al Qaeda operations outside of Afghanistan. Some even suggest that he was higher in the organization’s hierarchy than Khalid Sheik Mohammad, the mastermind behind the 9/11 attacks.
This was the knowledge that I was armed with when I landed in Cuba, and I started to wonder, how, five years after he had been captured, with this much evidence, and a defense that is more fit for a comedy than the serious charges leveled against him, are we not even at trial. I was merely observing pre-trial proceedings, and it was October 2012! As I attended one hearing after another I watched as simple issues that state and federal courts often resolve in a matter of minutes languished without resolution.
On the morning of the first day, al Nashiri refused to leave his cell. The defense argued that he should not be forced to attend and “listen day after day about the torture that was inflicted upon him.” As has been well documented by the press, al Nashiri was classified as one of just sixteen high value detainees, and just one of three subjected to “enhanced interrogation techniques.”
The issue surrounding his absence is what lawyers call KVI – was al Nashiri’s waiver of his right to attend these proceedings Knowing, Voluntary and Intelligent. The prosecution feared that if al Nashiri did not periodically make the KVI waiver in open court, then they could face an appellate challenge, forcing them to start the whole thing from scratch.
The debate took hours. Court decisions from multiple jurisdictions were cited. As I told one of the defense attorneys later, this issue would have lasted ten minutes in a civilian court. He politely disagreed: “five minutes.” Even the Judge got tired of it, stating at one point, “We probably could have done this much faster.” Ultimately, the Court ruled that al Nashiri must attend. We adjourned and waited for his arrival.
Finally, he was there. With plenty of time to plan his soliloquy, I was expecting something worth printing – and al Nashiri didn’t disappoint: “I thank you for letting me talk. I have been, for the last ten years, with nobody to hear what I have to say. Ten years.” He was on the verge of tears. I knew this was going to be good.“But if you order the guards to bring me a bad chair, when I’m sitting in an uncomfortable place, I have the right to leave this court. You have to provide me with a comfortable chair where I can sit down comfortably.” Al Nashiri also didn’t like his ride: “I need a more comfortable vehicle to bring me here.” One of the victim’s family members in the viewing room shouted “This is comedy hour!”
But al Nashiri’s statement threw a wrench into the proceedings because the waiver was not Voluntary, and this triggered more debate about whether to force him to attend. In February 2013, four months after this issue arose, they were still debating it, and as the Judge noted, “we’re kind of going around in circles here.”
The defense also revisited al Nashiri’s ride in February: “During the transportation, apparently Mr. al Nashiri received some injuries to his wrist…He identified some red marks… He did seek medical attention. A corpsman did see him.” This is indeed comedy hour.
At some point, however, the proceedings had to continue, but the Judge had trouble moving things along. “I would like to limit these discussions, as much as I can, which at times I don’t feel I can, to the motion before me.” Right after that the defense asked if it could say something “briefly.”
Judge: Counsel used the term ‘briefly.’
Defense: ‘Briefly’ is a relative term.
Eventually the Judge got fed up with the defense, which was hell-bent on wasting everyone’s time arguing about a point of law to which there was no opposition.
Judge: But what I’m hearing is these things morph into other things.
Judge: You say ‘absolutely’ like it’s okay. I’m saying it’s not okay…You’ve asked for something, there’s no opposition to it, you’re going to get it, then I think we’re done…. What I am going to stop is taking a motion on subject A and morphing it into A, B, C, D, E, and F, which seems to happen frequently....I gave you what you asked for. Is there anything more to say? Rephrase that. Is there a need to say anything more?
The prosecution ticked the Judge off too.
Judge: Stop. I stopped [the defense counsel] when he went down the road.
Prosecutor: Yes, sir, if I could just say, the defense should not be allowed to say these things without evidence ----
Judge: Let me finish. Let me finish. Let me finish. We’re done.
The irony of this slow process is that some had the idea that a military tribunal would be faster and tougher, the sort of justice any enraged citizen might call for or that’s consistent with Churchill’s famous admonition of “try them today, shoot them tomorrow.” But this is slow justice, and to those who think the justice is inadequate, the prosecutor has something to say to you: “First of all, those who think that this Commission is expedient and secret justice, quite frankly, are just not paying attention and they are certainly not devoting serious thought to what happens inside this courtroom.” The defense agrees that it’s slow:
Defense: Here we are a year and a half into the case…because of all the procedural and logistic particular and all the other Guantanamo- related craziness---
Judge: Let’s say ‘challenges.’
Defense: Challenges….we haven’t even begun to get to where we would normally be in a less-challenged court within the first two months of representation.
One of the good things about the process is the lawyers. They are articulate, well-prepared and smart. There is also no love lost between them, a good ingredient for the adversarial process. In one instance, the defense attorney contested the prosecution’s motion to force al Nashiri to attend the hearings, bellowing “We need an actor for the theatre here!” After the defense expressed concern that the microphones on their table were listening devices, forcing them to scurry to the corner to whisper, the prosecution invoked the same metaphor: “and I’ll note for the record that we have some theatrics going on here as counsel parade, you know, over to the corner of the room.”
Theatre, parade, whatever, there is also no love lost between the defense and the Commission, the entity that produces the show. As we were leaving Cuba and Hurricane Sandy – which tracked me down in New York after I got home – one of the Commission’s officers told me that it was simply outrageous that al Nashiri’s civilian defense counsel was paid the unholy sum of $150 per hour. This was simply too good a fact not to share with that lawyer, who quickly corrected the number: “actually, it’s $145.” Whenever I tell that to New York City lawyers – some of whom charge in excess of $1,000 per hour – I always get a good laugh. The defense doesn’t like the Convening Authority either. When arguing against allowing it to select the medical personnel to determine al Nashiri’s competence, counsel did not mince words: “how can I say this delicately – I don’t have a lot of confidence in the Convening Authority or the quality of the people he might appoint.” In state and federal courts across the country routine disputes are often quickly resolved because there is a history of how to deal with them. The Court in Guantanamo, however, has virtually no history, and that slows things down.
In addition, it became clear to me that the Judge was focused on creating a full record for the appellate court, and likely the Supreme Court, which will probably be the ultimate arbiter of al Nashiri’s fate. Indeed, the Defense has already telegraphed its intent to appeal: “Putting a person on trial for a death penalty offense, subjecting him to the pressures and drama of a death penalty case that is almost certain to be reversed at some point in the future is akin to a second mock execution.” The defense invoked history too: “But, you know, some of what we are doing is for the historical record…. But 25 years from now, probably after I’m long gone, perhaps maybe they will hide it long enough until after we are all long gone, somebody is going to look at this. They are going to say what was the real truth here. The real truth here, [redacted for 2 pages].” The real truth may be redacted in two pages, but what I saw is that the law creating the terror trials is a mess, and the travel back and forth to Cuba has slowed these proceedings to a snail’s pace.
As I was leaving Cuba I had an opportunity to speak with the Chief Prosecutor, and I asked him how he felt about what was happening here. He paused for a moment and then said that “If people look at this, they will see that it is fair.”
Even if that’s true, I can’t help but think that if this trial were held in a normal federal court we would be further along, and the victim’s family members would be closer to getting at least some closure. Before I left I asked one of the victim’s family members how he was feeling. This man’s brother, not yet old enough to drink, was killed in the attack on the Cole. He wasn’t a lawyer or an intelligence officer. “I’m just trying to understand this,” he said. Me too.
Michael Richter is an attorney at Joseph Hage Aaronson, a boutique litigation shop based in New York City that focuses on complex commercial litigation. He is also the Chairman of the Military and Justice Affairs Committee at the New York City Bar Association.”
Article picture: Guantanamo Camp X-Ray. U.S. Army Military Police escort a detainee to his cell in Camp X-Ray at Naval Base Guantanamo Bay, Cuba, during in-processing to the temporary detention facility on Jan. 11, 2002.
The detainees are being given a basic physical exam by a doctor, to include a chest x-ray and taken and blood samples drawn to assess their health.
of the Week
Lincoln’s Code: The Puzzling History of the Laws of War. John Fabian Witt, Allen H. Duffy Class of 1960 Professor of Law, Inaugural Lecture.
Tip: Suggest a video!